Citation: Simmonds v. Wawanesa Mutual Insurance Company, 2025 ONLAT 24-010768/AABS

Licence Appeal Tribunal File Number: 24-010768/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Trecia Simmonds

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Timothy Porter

APPEARANCES:

For the Applicant:

Ms. Denise Junkin, Counsel

For the Respondent:

Anju Sharma, Counsel

HEARD: by Videoconference:

July 14-18, 2025

OVERVIEW

1Trecia Simmonds, the applicant, was involved in an automobile accident on December 5, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit in the amount of $391.51 per week from September 12, 2022, to date and ongoing?

ii. Is the applicant entitled to $1,130.00 for assistive devices, proposed by Limitless Rehab in a treatment plan/OCF-18 (“plan”) dated May 27, 2022?

iii. Is the applicant entitled to $2,144.94 for psychological services (Driver Reintegration Assessment), proposed by Limitless Rehab in a plan dated June 17, 2022?

iv. Is the applicant entitled to $2,200.00 for an orthopedic assessment, proposed by Limitless Rehab in a plan dated May 20, 2022?

v. Is the applicant entitled to $2,294.84 for psychological services, proposed by Limitless Rehab in a plan dated June 17, 2022?

vi. Is the applicant entitled to $2,672.42 for physiotherapy services, proposed by Limitless Rehab in a plan dated February 16, 2022?

vii. Is the applicant entitled to $2,460 for a worksite assessment, proposed by Complete Rehab in a plan dated August 4, 2023?

viii. Is the applicant entitled to $2,460 for a neurological assessment, proposed by Limitless Rehab in a plan dated November 10, 2022?

ix. Is the applicant entitled to $2,460 for a chronic pain assessment, proposed by Limitless Rehab in an application for determination of catastrophic impairment/OCF-19 dated November 28, 2023?

x. Is the applicant entitled to $3,024.44 for physiotherapy services, proposed by Limitless Rehab in a plan dated March 6, 2024?

xi. Is the applicant entitled to $2,045.30 for occupational therapy services, proposed by Limitless Rehab in a plan dated January 28, 2022?

xii. Is the applicant entitled to $3,024.44 for physiotherapy services, proposed by from Limitless Rehab in a plan dated October 16, 2024?

xiii. Is the applicant entitled to $3,566.27 for psychological services, proposed by Limitless Rehab in a plan dated October 16, 2024?

xiv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

xv. Is the applicant entitled to interest on any overdue payment of benefits?

xvi. Is the respondent owed costs?

Added/withdrawn issues

3The issues of catastrophic designation and attendant care benefits as noted in the case conference report and order were withdrawn by the applicant at the start of the hearing. The issue of costs was added by the respondent following the withdrawal of catastrophic impairment.

RESULT

4The applicant is not entitled to the income replacement benefit.

5The applicant is not entitled to the four disputed assessments.

6The applicant is not entitled to the eight proposed treatment plans.

7The applicant is not entitled to an award.

8As there are no overdue payments, no interest is due.

9The respondent is not owed costs.

PROCEDURAL ISSUES

Orthopedic Surgeon may not testify, and the report is not admitted into evidence

10The respondent submits that the applicant received the report of Dr. Getahun, orthopaedic surgeon, in October 2023, and that this report was not served or filed prior to the case conference on January 22, 2025. The report was filed and served on June 23, 2025, and this is far past the April 7, 2025, deadline for the exchange of all other documents and things not previously exchanged that they intend to rely on as evidence at the hearing, identified in the case conference report and order (“CCRO”). The respondent also submits that the late submission has completely undermined its ability to test the opinions with their own experts. The respondent also submits that the contents of the report are related to the applicant’s civil claim and do not consider the Schedule or related tests of eligibility. Finally, the respondent is frustrated by the fact that the report of Dr. Getahun specifically identified that an Accident Benefits file from 2016 was reviewed and considered in the opinion offered, whereas that specific file was sought through a production order which had been denied at the case conference of January 2025.

11Applicant’s counsel agreed that the document had not been produced prior to the deadline identified in the CCRO. The applicant submitted that in the alternative, Dr. Karmy, whose report has been properly exchanged and filed, could be a replacement witness or that an adjournment could be granted that would allow for proper exchange and filing of materials within agreed timelines.

12I find that the report was late filed. Applicant’s counsel received an orthopedic report from Dr. Getahun that was issued in October 2023. The report was filed and served on June 23, 2025; as per the CCRO the deadline for filing all other materials the parties intended to rely as evidence at the hearing was April 7, 2025.

13The report was late filed and if admitted, the respondent will be prejudiced due to a lack of preparation and potentially not knowing the case to defend.

14For the reasons above I do not allow the report to be admitted into evidence.

15Dr. Getahun was properly identified as a witness at the case conference. However, Rule 10.2 sets out the rules in relation to expert witnesses. In particular, Rule 10.2(d) stipulates that if a party intends to rely on the evidence of an expert, the party must provide a signed report setting out the instructions provided to the expert in relation to the proceeding, the expert’s conclusions, and the basis for these conclusions on the issues to which the expert will provide evidence to the Tribunal. In addition, Rule 10.3 establishes that if not otherwise ordered, the minimum disclosure and filing timeline for the information in Rule 10. 2 is at least 45 days prior to the hearing. As the report has not been admitted to evidence, Dr. Getahun is no longer eligible to be called as an expert witness for the hearing.

16As noted above, in the alternative, applicant’s counsel proposed the addition of Dr. Karmy to the witness list, or an adjournment.

17The respondent objected to a new witness being called without proper notice.

18Dr. Karmy’s report is contained within the properly filed and exchanged submissions, but Dr. Karmy was not identified as a witness at the case conference nor was he included in the final witness list exchanged with Respondent’s counsel 21 days prior to the hearing as required by Rule 9.4.3.

19I find that Dr. Karmy was not properly identified as a potential witness as per Rule 10.2. As Dr. Karmy was not properly identified I turn to Rule 9.3 and Rule 9.4.4. The applicant concedes that the Dr. Getahun report was late filed and could have foreseen that this may cause an issue that would necessitate calling an alternative such as Dr. Karmy. No sturdy reason has been identified for not submitting a change in the witness list prior to the start of the hearing; the respondent would be prejudiced with a lack of preparation should the witness be allowed to testify. Dr. Karmy’s report is in evidence and therefore the substance of the testimony would largely be in the knowledge of both parties and that testimony would be relevant to the issues in dispute, The respondent opposes the admission of Dr. Karmy’s testimony. The start of a hearing is not the time to be identifying new witnesses. For the reasons above Dr. Karmy may not be called to testify.

20According to Rule 16.1 an adjournment request must be made in writing using an approved form. Despite Rule 16.1, Rule 16.2 allows for oral adjournment requests which is reserved for unforeseen situations. Rule 16.2 provides that oral requests will only be granted in compelling circumstances where the party did not and could not have known of the circumstances giving rise to the adjournment request.

21This request has not been consented to by the Respondent. I find that the reason for adjournment was foreseeable and avoidable because the applicant was aware that the Dr. Getahun report was in its possession well before the deadlines for submission and exchange of evidence and witness lists and chose not to exchange and submit this material within the agreed schedule; similarly, the applicant was aware of the schedule of exchange and submission for witnesses and chose not to include Dr. Karmy on that list. I find that this adjournment request is not timely because the content of the Dr. Getahun report was known for several years prior to the application being filed. I denied the adjournment request for these reasons.

2016 motor vehicle accident reference is not struck from award particulars

22The respondent submits that the Award particulars contained in the applicant’s submissions should have paragraph 5 struck. Paragraph 5 of the particulars references the applicant’s 2016 motor vehicle accident (“MVA”) and suggests with this knowledge the respondent erroneously kept the applicant in the Minor Injury Guideline (“MIG”). The applicant was removed from the MIG on January 17, 2022, following receipt of family physician clinical notes and records, on the basis of a pre-existing injury. The respondent submitted that its efforts to understand the 2016 MVA have been thwarted by the applicant as recently as the case conference where the applicant opposed production of the 2016 accident benefits file.

23The applicant submits that the reference in paragraph five does not mean the applicant intends to enter evidence from the 2016 accident benefits reports. The applicant submitted that award particulars are by their nature an argument; and that the respondent cannot limit the arguments of the applicant for the award in this way.

24The submission was made within the CCRO stated timelines and is relevant to the issues in dispute. While the respondent may not like the submission, the applicant is not restricted in the arguments that can be made in support of her case. The respondent has opportunities within the hearing to make arguments against the argument being advanced and has been aware of the argument made in written submissions for some time prior to the hearing of the matter and therefore any prejudiced to the respondent is minimal. I see no reason to strike the reference from the submission.

25I deny the respondent’s request.

Handling adjuster not compelled to attend

26The applicant submits that the handling adjuster was listed at the case conference as a witness the party wished to call and that the witness has continued to be identified throughout the process. The applicant also submitted that respondent’s counsel has not responded to their requests as to whether counsel would accept the summons on behalf of the adjuster.

27The respondent submits that responses to inquiries by opposing counsel were answered, that respondent’s counsel does not represent the handling adjuster, that she has been informed that it is the respondent’s policy to not have counsel accept summons on behalf of employees, and finally, that she is unsure as to whether the adjuster intends to attend.

28The summons was sought and obtained very late in the process; the applicant received a summons for the handling adjuster on July 3, 2025, and the hearing began July 14, 2025. The applicant has not properly served the summons on the witness, in accordance with the Rules. The respondent’s counsel is not the legal representative for the witness. For the reasons above I am not acting to compel the witness to attend; the handling adjuster is properly identified as a witness for the hearing and may testify.

ANALYSIS

Applicant is not entitled to income replacement benefits

29The applicant has not met her onus to show entitlement to the pre-104-week income replacement benefits in dispute.

Pre-104 Week IRB

30To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

31The respondent paid income replacement benefits from December 12, 2020, until September 12, 2022. Benefits were discontinued based on s. 44 insurer’s examination reports by Dr. Dumitrascu, psychologist, Dr. Auguste, orthopaedic surgeon, Mr. Yip, physiotherapist, and Dr. Yufe, Neurologist who opined that the applicant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment.

32The applicant seeks IRB weekly payments of $391.51 per week from September 12, 2022, to date and ongoing. There is no dispute regarding the amount of weekly IRB payments should the applicant be entitled.

33The applicant submits that pain in her neck and back and associated symptoms and feelings of uselessness have rendered her with a substantial inability to perform the essential tasks of her pre-accident employment.

34The respondent submits that the applicant suffers from pre-existing, degenerative disc disease which is the source of her pain and that a breakdown in the applicant’s marriage is the source of any psychological distress.

35The applicant’s reports of pain to medical professionals are inconsistent. When the applicant was seen by paramedics at the scene of the accident, she reported “no complaints, just shaken up”. Ambulance personnel did not transport the applicant to hospital. The applicant next sought medical attention at Great Lakes Medical Centre, a walk-in clinic on December 7, 2020, with complaints of shoulder and back pain. The applicant returned for a follow-up visit on December 10, 2020, and the clinical note highlights that there is “noted improvement on medications and is going for Physio”. The applicant next attends Brampton Civic Hospital emergency room on December 30, 2020; hospital records indicate that the applicant awoke with left side neck pain that started at 6:30 AM but there is no mention of the MVA by the applicant.

36The applicant testified that she had no neck pain prior to the subject accident, that she had neck pain after the accident and therefore she attributes the neck pain to the car accident. However, during the hearing, the applicant was shown CNRs from her family doctor, Dr. Mayer Yacowar dated February 25, 2019, wherein Dr. Yacowar documents that the applicant came “in secondary to chronic pain x3 years since MVA (a reference to a 2016 MVA) with C-spine pain” (C-spine in lay terms is the neck). The applicant testified that she had neck pain before but that it was nothing acute. On a balance of probabilities, I find this evidence confirms that the applicant’s neck pain was pre-existing.

37The applicant testified that the back pain she was feeling post subject MVA was more intense than pain she felt from 2016 – 2020 and therefore the subject MVA is the cause of the pain she is experiencing. In contrast the applicant was shown a Humber River Hospital medical imaging report from July 2, 2017, which reported “At L4-L5 there is spinal stenosis due to posterior disc bulge compressing the dural sac along with thickened ligaments and likely the traversing nerve roots and at L3-L4 the exiting L3 nerve root appears to be slightly compressed.” The applicant testified to her lived experience, however, her opinion regarding the cause of the pain experienced is not based in a medical degree or any experience that would provide me confidence in that opinion in this regard.

38Turning to the CNRs of Dr. Yacowar from May 17, 2017, and May 26, 2017, the applicant reported on both visits low back pain that is prolonged and bothersome. The applicant also underwent an x-ray of her cervical spine on January 6, 2022, with the subsequent report stating findings of mild degenerative disc disease seen at C3-C4 and C4-C5. The applicant also underwent a magnetic resonance imaging of her spine June 12, 2021, the summary of which states multilevel degenerative disc disease of the lumbar spine, and it is noted that degenerative findings have mildly progressed from a prior MRI in 2017. The applicant also underwent an MRI of her spine on December 5, 2022, and the results were compared to the June 2021 MRI and the impression was multilevel degenerative disc disease with mild progression of degenerative changes when compared to the previous MRI. I find that the MRI reports are consistent and clear: that the applicant suffers multilevel degenerative disc disease of the spine and that this is a pre-existing condition which pre-dates the subject accident.

39The applicant also underwent a s.44 assessment with Dr. Jacqueline Smith Auguste, orthopaedic surgeon, on June 14, 2022. Dr. Auguste found that in all medical probability the applicant’s current complaints are related to the natural history and progression of her underlying pre-existing degenerative lumbosacral condition and not the injuries sustained in the subject accident. The applicant also saw s. 44 assessor Dr. Rajka Soric, physiatrist, for an assessment on March 5, 2024. Dr. Soric found the applicant had a longstanding history of lower back pain since a prior accident in 2016. Dr. Soric concurs with the opinion of Dr. Auguste. On a balance of probabilities, I find this evidence confirms that the applicant’s back pain was pre-existing.

40The applicant testified that that she held a personal support worker (“PSW”) role at Eatonville Care Centre. The PSW role encompassed responsibilities such as bedside care, showering, feeding and dressing residents as well as bed transfers and incontinence care. The applicant testified that her accident-related injuries caused an inability to lift more than 10 pounds, an inability to stand for more than 10 minutes in an hour and an inability to sit for extended periods. The applicant was off work for approximately 4 weeks following the accident and then returned to modified duties where the modified duties saw her perform resident feeding and general observation of wandering residents of Eatonville. Modified duties seemed to have been offered from January 5, 2021, to July 16, 2021, when the employer was no longer willing to accommodate modified duties. The applicant appears to have then taken 2 months off and on August 17, 2021, she asked her family doctor Dr. Yacowar for a sick note covering the previous 2 months, which he declined to provide as this had not been discussed. This was the applicant’s final visit with Dr. Yacowar.

41Following this the applicant attempted a return to regular duties by shadowing another worker. This appears to have ended in December of 2021 and the applicant ceased working in January 2022 when the applicant received a sick note from family doctor Dr. George Tawadros Elraheb. The CNR of Dr. Elraheb on the day of the request for the sick note states “Lumbosacral spine degeneration, finding it hard to continue her work as a PSW with lots of heavy lifting, severe lower back tenderness, limited low back flexion”. Taken together, I am persuaded, on a balance of probabilities that the low back pain is the result of multilevel degenerative disc disease. On a balance of probabilities, the applicant’s functional limitations are a result of degenerative disc disease and not the subject accident.

42The applicant was assessed by s. 25 assessor Laiba Imran, counselling psychologist, on May 11, 2022. Ms. Imran conducted an interview and administered several self-report checklist tests and opines in the report that the applicant has other specified trauma-and stressor-related disorders and somatic symptom disorder, with predominant pain. I am not persuaded by Ms. Imran’s report because she does not outline how the subject accident is related to the symptoms the applicant is experiencing. Ms. Imran is also overly reliant on the self-reports of the applicant with very few medical records reviewed. The self-reports to Ms. Imran are also not corroborated by the applicant’s self-reports to Dr. Tawadros.

43The applicant saw her family doctor, Dr. Elraheb, beginning on November 17, 2021. She saw her doctor 26 times up until January 30, 2024, and the applicant regularly and consistently raised back pain as a concern but did not mention any psychological or emotional issues. On July 30, 2024, the applicant first complains of depression and anxiety symptoms to the family doctor, the timing of which coincides with the breakdown of the applicant’s marriage. On a balance of probabilities, the applicant’s psychiatric issues are not accident related.

44On a balance of probabilities, the applicant has not suffered a substantial inability to perform the essential tasks of her employment as a result of the subject accident.

Post-104 Week IRB

45The applicant is not entitled to post-104-week income replacement benefits.

46To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.

47I find that s. 5(1)1. of the Schedule states that an insured must suffer a substantial inability within the first 104-week period post-accident to qualify for post-104 IRBs: see also Paesano v. Coseco Insurance Co., 2025 ONSC 3245 at para. 41 (Div. Ct.). As noted above, on a balance of probabilities, the applicant has not suffered a substantial inability to perform the essential tasks of her employment as a result of the subject accident.

48As the applicant has not demonstrated that she suffers a substantial inability to perform the essential tasks of her employment as a result of the subject accident, I find that she is not entitled to the post-104 IRB.

The applicant is not entitled to the five assessment plans

49To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

Orthopedic assessment

50The applicant is not entitled to the orthopedic assessment.

51The OCF-18 was issued by Harleen Kaur, physiotherapist, on May 20, 2022. The injuries listed are sprain and strain of sacroiliac joint, hip and lumbar spine, radiculopathy, chronic pain, nervousness, sleep disorders, other specified intervertebral degeneration, lumbago with sciatica, spondylolysis and spinal stenosis. The plan specifically references a May 12, 2022, MRI showing multiple disc bulges and progression of the spinal stenosis and lumbar pathology. The plan recommends an orthopedic assessment and report and along with completion of the OCF-18 is proposed at a cost of $2,2000.00.

52The applicant did not testify directly regarding this plan.

53I am not persuaded by the OCF-18 and comments by physiotherapist Kaur because the MRI referenced, which is not in evidence, would have been taken after the June 2021 MRI which identified multilevel degenerative disc disease with mild progression of degenerative changes when compared to the previous MRIs. It is unclear if the MRI was not read correctly by physiotherapist Kaur or if there is suggestion that the injuries identified are mistakenly attributed to the subject accident. In either case the basis for the plan is undermined in my mind because the MRI reports consistently and clearly identify multilevel degenerative disc disease, which is not related to the subject accident.

54The applicant did not point me to any additional evidence in support of entitlement to this disputed plan.

55The respondent pointed me to the report by Dr. Auguste, orthopaedic surgeon who assessed the applicant on June 14, 2022. Dr. Auguste found that in all medical probability the applicant’s current complaints are related to the natural history and progression of her underlying pre-existing degenerative lumbosacral condition and not the injuries sustained in the subject accident. I am persuaded by the opinion of Dr. Auguste who also testified that the degenerative disc disease is very likely the cause of the pain the applicant is feeling. Some years later, Dr. Soric, physiatrist, also assessed the applicant on March 5, 2024. Dr. Soric found the applicant had a longstanding history of lower back pain since a prior accident in 2016. Dr. Soric concurs with the opinion of Dr. Auguste.

56For the reasons above I find that the applicant has not met her burden and is not entitled to the orthopaedic assessment.

Work-site assessment

57The applicant is not entitled to the work-site assessment.

58The OCF-18 was submitted by Jessa Rahim, chiropractor on August 4, 2023. The plan proposes “Test, musculoskeletal system NEC” for a cost of $2,000, plus documentation support, for a total cost of $2,200.00. The injuries listed are sprain and strain of sacroiliac joint, hip and lumbar spine, radiculopathy, chronic pain, nervousness, sleep disorders, other specified intervertebral disc degeneration, lumbago with sciatica, spondylolysis and spinal stenosis. The goals identified are pain reduction, increase in strength, return to activities of normal living and return to pre-accident work activities. The output of the plan will be a functional abilities evaluation.

59The applicant submitted that the role of PSW is a difficult and physically demanding role and that her accident-related injuries are prohibiting her from returning to work. The plan would help her to find a path to reintegration at work.

60The respondent submits that the applicant has discussed degenerative disc disease and its direct negative impact on her ability to work with her family doctor Dr. Elraheb on June 27, 2023 – one month prior to the OCF-18 submission.

61The goals identified in the treatment plan are in relation to the identified injuries which relate on a balance of probabilities to the back and neck pain which has been found to be pre-existing.

62I find that the functional abilities evaluation is not reasonable and necessary, as a result of the subject accident.

Neurological assessment

63The applicant is not entitled to the neurological assessment.

64The OCF-18 proposes a neurological assessment and is submitted by Dr. Lance Majl on November 10, 2023. The goals of the plan are pain reduction, to identify appropriate intervention methods and management and to assess any abnormalities as well as a return to the activities of normal living.

65The applicant did not testify directly about this proposed assessment.

66I am persuaded by the report of Dr. Yufe who saw the applicant 8 months following the subject accident. The respondent pointed me to the August 30, 2022, s. 44 report of Dr. Robert S. Yufe, neurologist, who assessed the applicant on August 23, 2022. Dr. Yufe opined that the applicant sustained no neurological impairment as a result of the subject accident.

67I am not persuaded that a neurological assessment is necessary or would be in relation to the subject accident. The applicant has undergone a neurological assessment, the findings of Dr. Yufe have not been undermined or challenged by the applicant; Dr. Yufe’s findings are clear, and the assessment was performed in reasonable proximity to the subject accident. The applicant did not point me to any additional evidence in support of entitlement to this disputed plan.

68For the reasons above, I find that the applicant has not met her burden to demonstrate that the treatment plan is reasonable and necessary.

Chronic pain assessment

69The applicant is not entitled to the chronic pain assessment.

70The November 28, 2023, OCF-18 proposes a chronic pain assessment by Narwinder Kaur, however the version of the OCF-18 in evidence is not signed and does not provide information on Narwinder Kaur’s professional designation or role. The injuries listed are sprain and strain of sacroiliac joint, hip and lumbar spine, radiculopathy, chronic pain, nervousness, sleep disorders, other specified intervertebral disc degeneration, lumbago with sciatica, spondylolysis and spinal stenosis. The goals of the plan are pain reduction and return to activities of normal living. The plan is proposed at a pre-tax cost of $2,200.00.

71The applicant submitted that she suffers near constant, debilitating pain in her back which is as a result of the subject accident. The applicant relies on her testimony and the report by Dr. Karmy.

72The respondent submits that the applicant has been referred to pain management by her family doctor and pointed me to the report by Dr. Auguste and Dr. Tatiana Dumitrascu, psychologist.

73Dr. Grigory Karmy, chronic pain physician, assessed the applicant March 27, 2025, and issued his report April 4, 2025. Dr. Karmy diagnoses the applicant with possible mild traumatic brain injury, chronic post-traumatic headaches, chronic mechanical neck pain, chronic mechanical left shoulder pain, chronic mechanical lower back pain, myofascial pain syndrome, chronic pain syndrome and adjustment disorder. Dr. Karmy also applies the American Medical Association Guides (5th edition), six criteria for assessing chronic pain to corroborate his opinion.

74I am not persuaded by Dr. Karmy’s report because while he details that the various diagnoses are as a result of the subject accident or were exacerbated by the subject accident there is no analysis or outline of facts that provide me confidence in the opinion. Dr. Karmy diagnoses the applicant with a mild traumatic brain injury, but this is an outlier opinion and counter to the applicant’s testimony and ambulance call report which both confirm that the applicant did not hit her head in the subject accident. In addition, Dr. Karmy’s review of the six criteria for diagnosing chronic pain syndrome makes assumptions not supported by the evidence. For example, Dr. Karmy observed secondary deconditioning and assumes this is as a result of the subject accident, whereas the medical evidence, on a balance of probabilities, suggests that secondary deconditioning has been a long-standing issue for the applicant. For example, the applicant had hernia repair surgery in 1998 when she was 18, had a caesarean section in 2018 and family doctor Dr. Yacowar regularly recommended active exercise to improve core strength which is demonstrated in CNRs on November 22, 2018, March 19, 2020, February 11, 2021, and May 21, 2021.

75The CNRs of family doctor Dr. Yacowar show that on February 25, 2019, the applicant was referred to a pain management clinic and again on April 15, 2019, Dr. Yacowar refers the applicant to “another” pain management clinic to see where she can get in the quickest. On a balance of probabilities, the chronic pain complaints are pre-existing, and the applicant has been referred to OHIP services for this.

76I am persuaded by the respondent’s orthopaedic assessor Dr. Auguste who was very clear that the pain issues the applicant suffers are degenerative disc disease related and not accident related.

77I am further persuaded by the respondent’s assessor psychologist Dr. Dumitrascu. The applicant was assessed by Dr. Tatiana Dumitrascu on February 26, 2024, and a report was issued March 15, 2024. It is Dr. Dumitrascu’s opinion that from a psychological perspective, no impairments were identified and from a psychological perspective, a chronic pain assessment for psychological treatment planning is not reasonable or necessary.

78For the reasons above I find that the applicant is not entitled to the chronic pain assessment.

Driver reintegration assessment

79The applicant is not entitled to the driver reintegration assessment.

80The OCF-18 was submitted by Laiba Imran, psychotherapist, on June 17, 2022, and proposed 1 hour of preparation service, 1 hour of mental health assessment, 1 hour of travel time, 1 hour of documentation support activity, 1 hour driving test and completion of the OCF-18 for a pre-tax cost of $2,144.94. The submission lists symptoms the applicant reports such as fear and avoidance of being on the road, anxiety and significant discomfort while in traffic. The goals of the plan are pain reduction, return to pre-accident level of psychological functioning and return to activities of normal living.

81The applicant relies on the testimony and report of Erin Langis, psychologist.

82Ms. Erin Langis, psychologist, a supervising psychologist, oversaw the assessment of the applicant by Ms. Laiba Imran, psychotherapist, who conducted a clinical interview and administered psychological tests. The applicant was assessed by Laiba Imran, psychotherapist, on May 11, 2022 and the report was issued May 23, 2022. Langis/Imran opined that the applicant’s presentation is consistent with a DSM-5 criteria for diagnoses of other specified trauma, stressor related disorder and recommended a driver re-integration assessment. I provide a diminished weight to the report of Langis/Imran as the supervising psychologist Ms. Langis did not meet with the applicant and yet is the professional capable of making the diagnosis.

83The respondent challenges the findings of Erin Langis and Laiba Imran because of an over-reliance on the applicant’s self-reports, and discrepancies between the OCF-18 listed impairments and the report listed impairments. The respondent points to the report by Dr. Dumitrascu to support their position that the psychological complaints are not related to the subject accident.

84The applicant did not testify regarding this treatment plan.

85I am not persuaded by the Langis/Imran report because of a limited document review, which has left the assessors too reliant on the applicant’s self-reports, the lack of robust validity measures in the tests administered and Langis/Imran do not adequately relate the symptomology they are reporting to the subject accident. Finally, when listing the symptoms of the applicant in relation to driving fear, the OCF-18 notes the applicant endorsed symptoms such as heart palpitation and shortness of breath. However, these symptoms are not listed in their report which causes me to question the diagnosis regarding specific phobia.

86Dr. Dumitrascu assessed the applicant on June 7, 2022 and issued her report August 30, 2022. I am persuaded by the report of Dr. Dumitrascu, who opined that from a psychological perspective, no impairments were identified, and the applicant does not meet the DSM-5 criteria for a psychological disorder because of the subject accident. I find that, on a balance of probabilities, the applicant does not have a diagnosable psychological disorder.

87Taken together and on a balance of probabilities, I find that the applicant is not entitled to the driver integration assessment.

The applicant is not entitled to the eight treatment plans

Assistive Devices

88The applicant is not entitled to the assistive devices treatment plan.

89The OCF-18 was submitted by Adriana Amezquita, occupational therapist, on May 27, 2022. The goals of the plan are pain reduction, increased strength, increased range of motion and return to activities of normal living. The plan proposes a tub rail, electric heating pad, low back support with cushion, body pillow and a lumbar back brace; along with the completion of the OCF-18 the cost of the plan is $1,130.00.

90The applicant did not testify directly regarding this plan; she relies on the report and testimony of Ms. Amezquita, occupational therapist.

91The respondent submits that the assistive devices are required due to back pain, which is not because of the subject accident and takes issue with the quality of the report by Ms. Amezquita which led to the OCF-18.

92I am not persuaded by Ms. Amezquita’s report, testimony or OCF-18. The applicant was assessed by Ms. Amezquita on March 24, 2022. There are inconsistencies in Ms. Amezquita’s report, particularly her review of the hospital records from December 30, 2020, where she omitted that the applicant did not mention the accident during this visit to the emergency room and she also added the word “increased” to neck pain, which was not in the record.

93I have not been pointed to any corroborating contemporaneous medical evidence in support of this plan.

94For the reasons above I find that the applicant has not met her burden to demonstrate entitlement to the assistive devices treatment plan.

2 Psychological services treatment plans

95The applicant is not entitled to the psychological service treatment plans.

96There are 2 psychological services treatment plans in dispute:

i. The OCF-18 of October 16, 2024, was submitted by Erin Langis, psychologist and Laiba Imran, psychotherapist, of Limitless Rehab and proposes cognitive behavioral therapy. The injuries listed are undifferentiated somatoform disorder and other reactions to severe stress. The goals of the plan are pain reduction, return to pre-accident psychological functioning and return to activities of normal living. The plan proposes 10 x 1.5-hour sessions of individual psychotherapy, 1.5 hours of testing and scoring, 1.5 hours of treatment planning, a progress report and completion of the OCF-18 for a total of $3,566.27.

ii. With regard to issue 5 listed above, the applicant sought entitlement to $2,294.84 for psychological services, proposed by Limitless Rehab in a plan dated June 17, 2022. I have not been pointed to any evidence of this plan and no materials related to this treatment plan appear to be in the submissions by the applicant.

97The applicant submits that constant pain and sleep issues have left her with psychological impairments, she relies on her testimony and the report by Laiba Imran and the testimony of Erin Langis.

98The applicant testified that she had not experienced any psychological issues prior to the subject accident, and she is experiencing them now, therefore they are related to the subject accident.

99The respondent submits that the applicant’s psychological issues are not diagnosable, are as a result of her low back pain and the break-up of her marriage, not the subject accident.

100Ms. Erin Langis, psychologist, testified as a supervising psychologist, she did not assess the applicant but oversaw the assessment of the applicant by Ms. Laiba Imran, psychotherapist, who conducted a clinical interview and administered psychological tests. The applicant was assessed May 11, 2022 and the report was issued May 23, 2022. Langis/Imran opined that the applicant’s presentation is consistent with a DSM-5 criteria for diagnoses of other specified trauma, stressor related disorder and somatic symptom disorder, with predominant pain.

101I am not persuaded by the Langis/Imran report because of a limited document review, which has left the assessors too reliant on the applicant’s self-reports, the lack of robust validity measures in the tests administered and because Langis/Imran do not adequately relate the symptomology they are reporting on to the subject accident.

102I am instead persuaded by the report of Dr. Dumitrascu, who opined that from a psychological perspective, no impairments were identified, the applicant does not meet the DSM-5 criteria for a psychological disorder as a result of the subject accident.

103I find that the evidence does not support a finding that the treatment plan is reasonable and necessary for accident-related impairments.

104I find on a balance of probabilities that the applicant is not entitled to the psychological services treatment plans.

Three physiotherapy services treatment plans

105The applicant is not entitled to the three physiotherapy services treatment plans.

106There are three physiotherapy services treatment plans in dispute:

i. The OCF-18 submitted by Harleen Kaur, chiropractor of Limitless Rehab, on February 16, 2022, proposes physiotherapy services; 12 x 1-hour sessions of physiotherapy, 12 x 30-minute sessions of active exercise, 6x 1 hour of chiropractic treatments and completion of the OCF-18 for a total plan value of $2,672.42. The injuries listed are sprain and strain of sacroiliac joint, hip and lumbar spine, radiculopathy, chronic pain, nervousness, sleep disorders, other specified intervertebral disc degeneration, lumbago with sciatica. The goals of the plan are pain reduction, increased range of motion and a return to the activities of normal living.

ii. A second OCF-18 was submitted by Harleen Kaur, physiotherapist of Limitless Rehab, on March 6, 2024. The plan proposes 12 x 1-hour sessions of physiotherapy, 12 x 30-minute sessions of active exercise, 12 x 45-minute sessions of chiropractic treatment and the completion of the OCF-18 for a total plan of value of $3,024.44. The injuries listed are the same as the February 16, 2022, plus the addition of spondylosis and spinal stenosis. The goals of the plan are pain reduction, increased range of motion, increase strength and return to the activities of normal living.

iii. A third OCF-18 was submitted by Neha Sharma Gupta, physiotherapist of Limitless Rehab. The plan was submitted October 16, 2024, and proposes 12 x 1-hour sessions of physiotherapy, 12 x 30-minute sessions of active exercise, 12 x 45-minute sessions of chiropractic treatment and completion of the OCF-18 for a plan cost of $3,024.44. The injuries listed are identical to the list provided in the March 6, 2024, OCF-18. The goals are the same as the March 6, 2024, OCF-18.

107The applicant submits that she requires physiotherapy to return to her activities of normal living.

108The respondent relies on the reports by s. 44 assessors Dr. Auguste, orthopedic surgeon, Dr. Soric, physiatrist, and Dr. Dumitrascu, psychologist.

109The applicant testified that physiotherapy was helpful, but the pain did not go away. She also testified that the pain in her back has gotten worse since the therapy ended.

110With regard to the February 16, 2022 plan, I note that family doctor Dr. Elraheb saw the applicant on February 2, 2022, two weeks prior to the plan’s submission. The CNR indicates that the doctor was following up with the applicant regarding previous MRIs which revealed multilevel degenerative disc disease and a referral to a spine clinic. On a balance of probabilities, the physiotherapy service is not required as a result of the subject accident because her family doctor was identifying to the applicant on February 2, 2022, that the issues she was experiencing were in relation to pre-existing degenerative disease and not the subject accident.

111I note the treatment records that detail the course of treatment by Limitless Rehab which demonstrate that the applicant was attending Limitless Rehab for physiotherapy every two weeks until August 10, 2022 after which the applicant took an 18 month break in treatment for personal reasons. While the applicant attended family doctor Dr. Elraheb on August 25, 2022, the reason for the break in service is not identified to Dr. Elraheb in the visits before, during or after the break. Throughout this period the applicant continues to regularly raise low back pain; Dr. Elraheb recommends active exercise numerous times.

112Dr. Tatiana Dumitrascu, psychologist, assessed the applicant on June 7, 2022 and issued her report August 30, 2022. I was pointed to the intake interview in which the applicant reported “physical therapy does not help much with relieving her pain.”

113Dr. Auguste, who assessed the applicant June 14, 2022, found that in all medical probability the applicant’s current complaints are related to the natural history and progression of her underlying pre-existing degenerative lumbosacral condition and not the injuries sustained in the subject accident. The applicant also saw s. 44 assessor Dr. Rajka Soric, physiatrist, for an assessment on March 5, 2024. Dr. Soric found the applicant had a longstanding history of lower back pain since a prior accident in 2016. Dr. Soric concurs with the opinion of Dr. Auguste.

114On a balance of probabilities, I find that the need for physiotherapy is related to the applicant’s multilevel degenerative disc disease. I find that the treatment plans are not reasonable or necessary.

115The applicant is not entitled to the three physiotherapy services treatment plans.

Occupational therapy services

116The applicant is not entitled to the occupational therapy services treatment plan.

117The OCF-18 was submitted by Harleen Kaur, physiotherapist on January 28, 2022. The injuries listed are sprain and strain of sacroiliac joint, hip and lumbar spine, radiculopathy, chronic pain, nervousness, sleep disorders, other specified intervertebral disc degeneration, lumbago with sciatica. The plan proposes an in-home assessment, form 1 (for determination of attendant care benefits), travel time, communication with others, patient education, report writing and completion of the OCF-18 for a total cost of $2,045.30.

118The applicant relies on the testimony and report by Adriana Amezquita, occupational therapist.

119The respondent relies on the report and testimony of Faye Pereras, occupational therapist.

120The applicant testified that following the accident she was no longer capable of doing her chores which included dusting, vacuuming, laundry cleaning and grocery shopping; due to her inability, her children and husband assisted.

121I note that the applicant had returned to work, on modified duties, 1 year prior to this plan being submitted and that the modified duties were no longer being offered 6 months prior.

122I am not persuaded by the report from Ms. Amezquita, OT, who assessed the applicant March 24, 2022. The range of motion testing undertaken by the OT is not clear, the OT tested range of motion across the neck, shoulder, elbow, back, hip, knee, ankle and wrist – however, the assessed range acronyms do not match the associated legend and therefore it is not possible to tell if the range was measured as functional or restricted. There are also inconsistencies in Ms. Amezquita’s report; in particular, her review of the hospital records from December 30, 2020 omitted that the applicant did not mention the accident during this visit to the emergency room, she also added the word “increased” to neck pain, which was not in the record. Finally, I cannot accept that Ms. Amezquita recommends basic supervisory care in this situation, as it is noted that this is required for emotional support, encouragement to complete daily activities and monitoring her mental health needs. The reasoning for this is emotional distress; however, I find this is completely based on self-reports without medical record corroboration and without a cognitive or emotional assessment. There is no safety concern identified. Of note, the applicant is caring for her 3-year-old child at this point.

123I am persuaded by the report of Ms. Faye Pereras, OT. Ms. Pereras reported the applicant’s range of motion and found that the applicant’s neck, shoulders, elbows, wrists, hip, knees, and ankles are all moving within functionally normal limits; she does note that the applicant’s back has mild to severe limitations in its range of motion. Ms. Pereras notes that the applicant ambulated and completed all transfers independently, she was able to access upper and lower cupboards in the kitchen, is independent in dressing and undressing, and with personal grooming tasks, can prepare light meals and feeding herself. Ms. Pereras concludes that the applicant has not sustained an impairment, as a result of the accident, which necessitates attendant care.

124I find on a balance of probabilities that the applicant is not entitled to the occupational therapy services treatment plan for assessment of attendant care needs and completion of a Form 1.

Interest

125As there are no late or delayed payments owing to the applicant, interest does not apply.

Award

126The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

127The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

128The applicant submits that delays in removing her from the Minor Injury Guideline, when informed of her 2016 motor vehicle accident, are stubborn and inflexible behaviour. The applicant also submits that the respondent was negligent in not undertaking addendum reports when new medicals were received.

129The respondent submits that the applicant’s claims were handled in good faith, that it continued to adjust the file and that there is no evidence about when updated medicals were received or why that evidence changes the situation.

130I am not persuaded that there was an unnecessary or undue delay in removing the applicant from the Minor Injury Guideline, nor that this would have negatively impacted on the care the applicant was accessing. In my view, any delay in removal of the applicant from the Minor Injury Guideline was short and rectified quickly. It is also not clear that the applicant ever delivered evidence of the 2016 accident or resulting treatment.

131It is also not clear that any medicals which had been delivered would have warranted additional review by a s.44 assessor. The insurer is obligated to assess new medical information and constantly adjust the claim; however, I have not seen anything persuasive in the medicals that suggests an error has been made in adjusting the claim. I find that the respondent’s actions do not meet the high standard for an award.

132I find that the insurer has not acted unreasonably and has not withheld or delayed any payment of benefits that the applicant was entitled to.

133The claim for an award is dismissed.

Costs

134Costs are not awarded

135At the beginning of the hearing, the respondent indicated that it would be seeking costs.

136Rule 19.1 provides that a party may make a request to the Tribunal for its costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.

137The onus is on the respondent to prove on a balance of probabilities that the applicant acted unreasonably, frivolously, vexatiously, or in bad faith.

138The respondent submits that the unreasonably late withdrawal of the catastrophic impairment dispute, which it argues is without merit, has cost the respondent in preparation time and actual expenditures as the respondent had two doctors on hold for the hearing to testify and that this is behaviour that should be deterred. The respondent submitted that $1,000.00 per day for four hearing days would be an appropriate award in recognition of the waste of time and resources.

139The applicant submits that the withdrawal of the catastrophic impairment dispute was made to streamline the hearing and focus on the IRB and treatment plans for efficiency purposes. The applicant pointed out that costs are awarded for hearing time and preparation time is not allowable for costs.

140Applicants are allowed to dispute the decisions of their insurance company. The applicant attended the hearing and participated fully. I witnessed no behaviour that was unreasonable, frivolous, vexatious or in bad faith. Costs awards under Rule 19 are to maintain civility and order during proceedings, to deter conduct that threatens the orderly and civil resolution of a dispute, and to ensure that the Tribunal’s process and the other participants are respected. Costs are not to compensate parties for inconveniences or their involvement in the proceeding.

141For the reasons outlined above, I find that the respondent has not established on a balance of probabilities that it is entitled to costs under Rule 19.

ORDER

142The applicant is not entitled to the income replacement benefit.

143The applicant is not entitled to the four disputed assessments.

144The applicant is not entitled to the eight proposed treatment plans.

145The applicant is not entitled to an award.

146As there are no overdue payments, no interest is due.

147The respondent is not entitled to costs.